AMENDED AND RESTATED GUARANTEE AND ASSUMPTION AGREEMENT
EXHIBIT
2.6
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED GUARANTEE AND ASSUMPTION AGREEMENT (the "Restated Guarantee
Agreement") made as of August 14, 2006, by and among Cyber Merchants Exchange,
Inc. a California corporation ("Cyber"), Info Smart International Enterprises
Limited, a company incorporated under the laws of Hong Kong (“IS
International”), Info Smart Technology Limited, a company incorporated under the
laws of Hong Kong (“IS Technology”), and Infoscience Media Limited, a company
incorporated under the laws of Hong Kong (“IS Media”).
RECITALS
WHEREAS,
Cyber,
KI Equity Partners II, LLC, a Delaware limited liability company (“KI Equity”),
Prime Fortune Enterprises, Ltd., an international business company incorporated
in the British Virgin Islands (“Prime") and the shareholders of the Prime (the
“Prime Shareholders”) entered into an Exchange Agreement, dated July 7, 2006 (as
the same may be amended from time to time) (the “Exchange Agreement”) which
provided, upon the terms and subject to the conditions thereof, for the exchange
of all of the Shares of Prime Fortune for Cyber’s shares of Series A Preferred
Stock (the “Exchange”);
WHEREAS,
concurrent with this Restated Guarantee Agreement, Cyber, KI Equity, Prime
Fortune and Infosmart Group Limited, a company incorporated in the British
Virgin Islands (the "Company"), the Prime Shareholders, and the shareholders
of
the Company (the “Shareholders”) are executing a First Amendment to the Exchange
Agreement (the “Amendment”) that replaces the Prime Shareholders with the
Company’s Shareholders as the parties exchanging shares with Cyber under the
Exchange Agreement, and to reflect that that all of the obligations,
representations, warranties, liabilities and responsibilities of Prime under
the
Exchange Agreement shall now be the obligations, representations, warranties,
liabilities and responsibilities of Infosmart.
WHEREAS,
this
Restated Guarantee Amendment amends and restates, in its entirety, the original
Guarantee and Assumption Agreement entered into by an among Cyber, the Company,
IS International, IS Technology, and IS Media on July 7, 2006 to reflect the
changes to the Exchange Agreement pursuant to the Amendment;
WHEREAS,
IS
International, IS Technology and IS Media (collectively, the “Group Members”)
acknowledge that as a condition of Cyber entering into the Exchange Agreement,
each of them shall be liable with the Company and each of the Shareholders
with
respect to each of the obligations of the Company and the Shareholders under
the
Exchange Agreement and the Amendment; and
WHEREAS,
each of
the Group Members are to receive benefits as a result of the Exchange Agreement
and the Amendment.
NOW,
THEREFORE,
in
consideration of the mutual covenants set forth herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, each intending
to be legally bound, hereby agree as follows:
1.
Guarantee
and Assumption.
Each
Group Member hereby agrees that they shall, from the date of this Restated
Guarantee Agreement, be jointly and severally liable with the Company and its
Shareholders for each and every obligation and liability of the Company and
each
of the Shareholders with respect to each of the obligations of the Company
and
the Shareholders under the Exchange Agreement and the Amendment as if they
were
a party to the Exchange Agreement and the Amendment. Each Group Member further
agrees that Cyber shall not be obligated to take any steps whatsoever to collect
from, to file any claim of any kind against, or to enforce any liability or
obligation against, the Company or any Shareholder, prior to pursuing any claim,
action or remedy against any Group Member under this Restated Guarantee
Agreement.
2.
Default;
Notice.
In the
event of any default or breach by the Company or any of its Shareholders under
the Exchange Agreement and the Amendment, Cyber hereby agrees that it will
provide any notice to each Group Member that they are required to provide to
the
Company or its Shareholders and that it will not take any action against each
Group Member hereunder unless and until any applicable cure period under the
Exchange Agreement or the Amendment has expired.
3.
Acknowledgement.
Each
Group Member hereby acknowledge that this Restated Guarantee Agreement is a
material inducement for Cyber to enter into the Exchange Agreement and the
Amendment, and that Cyber would not have entered into the Exchange Agreement
and
the Amendment without this Restated Guarantee Agreement.
4.
Miscellaneous.
This
Restated Guarantee Agreement, and its enforcement, shall be governed by, and
construed in accordance with, the laws of the State of California (without
regard for conflict rules thereof) and the United States. This Restated
Guarantee Agreement may be executed in two or more counterparts, each of which
will be deemed to be an original of this agreement and all of which, when taken
together, shall be deemed to constitute one and the same agreement. Any party
to
this Restated Guarantee Agreement may deliver an executed copy hereof by
facsimile transmission to another party hereto and any such delivery shall
have
the same force and effect as any other delivery of a manually signed copy of
this Restated Guarantee Agreement. It is understood and agreed by the Parties
that each represents and warrants to the other that the individual signing
this
Restated Guarantee Agreement on behalf of the Party is their duly authorized
representative and that such individual’s signature binds the Party represented
to the terms of this Restated Guarantee Agreement. The terms and provisions
contained in this Restated Guarantee Agreement, the Exchange Agreement, the
Amendment, together with all agreements, certificates and schedules delivered
in
connection therewith, constitute the entire agreement between the Parties and
shall supersede all previous communications, representations, agreements or
understandings, either oral or written, between the parties with respect to
the
subject matter hereof. No agreement or understanding varying or extending this
Restated Guarantee Agreement shall be binding upon either party hereto, unless
set forth in a writing which specifically refers to this Restated Guarantee
Agreement, signed by duly authorized officers or represent representatives
of
the respective parties, and the provisions hereof not specifically amended
thereby shall remain in full force and effect.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their duly authorized officers on the day and year first set forth above.
Info
Smart International Enterprises Limited
By:
/s/ Xxxx Xxx Xxxx
Xxxx
Xxx
Xxxx, Director
Info
Smart Technology Limited
By:
/s/ Xxxx Xxx Xxxx
Xxxx
Xxx
Xxxx, Director
Infoscience
Media Limited
By:
/s/ Xxxx Xxx Xxxx
Xxxx
Xxx
Xxxx, Director
Cyber
Merchants Exchange, Inc.
By:
/s/ Xxxxx X. Xxxxxxx
Xxxxx
X.
Xxxxxxx, President
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